The Perils of ‘Off-Label Sentencing’

ByErin R. Collins |June 25, 2018

Current criminal justice reform efforts are risk-obsessed. Actuarial risk assessment tools, which claim to predict the risk that an individual will commit, or be arrested for, criminal activity, dominate discussions about how to reform policing, bail, and corrections decisions.

And recently, risk-based reforms have entered a new arena: sentencing.

Through the practice of “actuarial sentencing” (also called “evidence-based sentencing”), jurisdictions across the country are allowing or requiring sentencing judges to consider the recidivism predictions of actuarial risk assessment tools.

An actuarial risk assessment tool is essentially a structured survey that inquires whether an individual has certain “recidivism risk factors,” or characteristics that statistically correlate with recidivism. The individual is scored points for the presence or absence of these factors, and based on the individual’s total score, he or she is deemed to pose a low, medium, or high risk of recidivism.

Actuarial sentencing has gained the support of many practitioners, academics, and prominent organizations, including the National Center for State Courts and the American Law Institute. [see Model Penal Code: Sentencing § 6B.09]

This enthusiasm is, at first blush, understandable: actuarial sentencing seems to have only promise and no peril. It allows judges to identify those who pose a low risk of recidivism and divert them from prison. Society thus avoids the financial cost of unnecessarily incarcerating low-risk individuals.

And yet, this enthusiasm for actuarial sentencing ignores a seemingly crucial point: actuarial risk assessment tools were not developed for sentencing purposes.

In fact, the social scientists who developed the most popular risk assessment tools specified that they were not designed to determine the severity of a sentence, including whether or not to incarcerate someone. Actuarial sentencing is, in short, an “off-label” application of actuarial risk assessment information.

As we know from the medical context, the fact that a use is “off-label” does not necessarily mean it is ill-advised or ineffective. And, indeed, many contend that actuarial sentencing is a simple matter of using data gleaned in one area of criminal justice and applying it to another. If we know how to predict recidivism, why not use that information broadly?

Isn’t this a prime example of an approach that is smart—rather than tough—on crime?

As I contend in my article, Punishing Risk, which is forthcoming in the Georgetown Law Journal this fall, the practice of actuarial sentencing is not that simple, nor is it wise. In fact, using actuarial information in this “off-label” way can cause an equally unintended consequence: it can justify more, not less, incarceration—and for reasons that undermine the fairness and integrity of our criminal justice system.

The actuarial risk assessment tools that are being integrated into sentencing decisions, such as the Correctional Offender Management Profiling for Alternative Sanctions (COMPAS) tool, and the Level of Services Inventory-Revised (LSI-R), were designed to assist corrections officers with a specific task: how to administer punishment in a way that advances rehabilitation.

They are intended to be used after a judge has announced the sentence. They are based on the Risk-Need-Responsivity principle, according to which recidivism risk is identified so that it can be reduced through programming, treatment and security classifications that are responsive to the individual’s “criminogenic needs” (recidivism risk factors that can be changed).

Sentencing judges, in contrast, do not administer punishment but rather determine how much punishment is due. In doing so, they may use actuarial risk predictions to advance whatever punishment purpose they deem appropriate. While they may decide to divert a low-risk individual from prison in order to increase their rehabilitative possibilities, they may also decide to sentence a high-risk individual more harshly—not because doing so will increase her prospects of rehabilitation, but because it will increase public safety.

Judges may use risk prediction to incapacitate, not rehabilitate.

In other words, they may use the risk prediction to incapacitate, not rehabilitate.

This conclusion begs the question: Don’t we want judges to consider an individual’s risk level when determining a sentence? Quite frankly, no—at least not in the way these tools measure and define risk.

The tools measure risk based on a range of characteristics that are anathema to a principled sentencing inquiry, such as gender, education and employment history, and family criminality. Perhaps consideration of these factors makes sense if the predictive output is used to administer punishment in a way that is culturally competent and individualized.

But in the sentencing context, it allows the judge to punish someone more harshly based on a compilation of characteristics that are inherently personal and wholly non-culpable, and often replicate racial biases that pervade other areas of the criminal justice system. In other words, actuarial sentencing allows judges to defy the well-established tenet that we punish someone for what they did, not who they are.

Moreover, risk assessment tools define recidivism risk broadly. Many define it as the likelihood an individual will be convicted of a crime of unspecified severity in the preceding years. Others are even less precise, predicting the likelihood that a person will be arrested for any reason (regardless of whether the arrest is justified or results in charges).

Thus, the question these tools answer is: how likely is it that a person with these characteristics will commit or be arrested for any type of criminal activity—including low-level nonviolent activity—in the coming years? Even if we accept that judges should be mindful of public safety in determining a sentence, these tools do not advance that inquiry.

Incorporating these tools into sentencing conflates recidivism risk, broadly defined, with risk to public safety. If we want to reduce our reliance on public safety, we must refine—rather than expand—the risk that counts for sentencing purposes.

Thus, it is not clear that these correctional tools advance a sound sentencing inquiry. But even if they did, it is questionable whether they actually enhance the accuracy of the predictions judges would make in their absence.

In fact, computer scientists recently found that people with little or no criminal justice expertise were able to predict recidivism at the same level of accuracy—approximately 65 percent—as a popular risk assessment tool.

Thus, even if actuarial sentencing benefits people who are sufficiently low-risk to be diverted from prison, that benefit will not be evenly or fairly distributed amongst the defendant population. And those who are deemed a high risk based on these same factors may be more likely to be incarcerated, and perhaps for longer periods.

Erin R. Collins

As I conclude in “Punishing Risk,” as top criminal justice policy makers call for a revival of the war on crime, “now, more than ever, we [must] carefully scrutinize how data is incorporated into criminal justice decisions, with particular attention to how we label people as ‘risky,’ and the consequences of that label.”

Erin R. Collins is an Assistant Professor of Law at the University of Richmond School of Law. She welcomes readers’ comments.

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One thought on “The Perils of ‘Off-Label Sentencing’”

What’s missing in the equation is the efficacy of the intervention at reducing the risk of recidivism. If being sentenced to breaking rocks in the hot sun for 10 years does nothing to reduce (or even increases) the risk of re-offending, then the benefit to public safety is merely to keep the offender off the street for ten years. But if they could be sentenced to an intervention that actually did reduce their risk of future offending, then the sentence might be justified, to the extent that the length/dosage of the intervention is sufficient to reduce the risk once they are released. So if any risk factors are going to be considered in sentencing, they should only be those that are dynamic, and that are amenable to treatment.

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